The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002.
The Issue The issue for resolution is whether Petitioner is entitled to registration as a charitable organization pursuant to Section 496.405, F.S. An administrative complaint alleging violations of Section 496.405, F.S. was served at the same time as the agency's notice of registration denial. The time to respond to the complaint has not expired and the issues raised in that complaint are expressly reserved for another proceeding if requested by United Rainbow Foundation, Inc.
Findings Of Fact Petitioner, United Rainbow Foundation, Inc., (URF) is a Florida not- for-profit corporation with its principal office in Tarpon Springs, Pinellas County, Florida. Don Whittaker is a director and president of the corporation. URF was incorporated in Florida on March 24, 1992. No notice of any requirements for registration as a charitable organization was provided to URF or its attorney at the time that the corporate papers were sent by the Florida Department of State. Thereafter, URF set about acquiring various permits or registrations which it deemed were necessary in order to conduct solicitation of charitable contributions throughout the state. It registered with the City of Sarasota Better Business Council and with Dunn and Bradstreet; it obtained Florida Department of Transportation regulations regarding roadside solicitation; it applied for a Federal Employer Identification Number; it registered its fictitious name, "Children's Cancer Society" with the Department of State; it prepared and filed Internal Revenue Service form 1023, application for tax exempt status under IRC Section 501(c)(3). It also obtained, at various times, local occupational licenses and local permits to conduct charitable solicitations, and learned that certain other local jurisdictions did not require licensure. In the process of acquiring local approval, Dan Whittaker received a letter dated April 6, 1992 from the Pinellas County Department of Consumer Affairs and an application for that county's charitable solicitation permit. The April 6 letter includes this information: * * * As of January 1, 1992, the State of Florida also requires registration of most charitable groups, professional solicitors, and certain other groups. No group should begin or continue solicitation activity without contacting the Florida Division of Consumer Services for information; 800/435-7352 in Florida, 904/488-2221 outside Florida. A Pinellas County permit does not relieve any organization of its responsibility to comply with State law and is in addition to State requirements. While the County application form asks a question about State registration, State registration is not mandatory for County registration. While you are waiting for State information, do not delay your County application. (Respondent's Exhibit #2) As described by Dan Whittaker, URF actively conducted solicitation primarily in May and June, but also sometime in April in Bradenton, Florida. At various times, and in various cities in Florida, typical crews of four to twenty people worked traffic intersections with plastic jugs. Very briefly, for approximately 1 to 1 1/2 weeks in late June or early July, a telemarketing solicitation campaign was conducted, with seven or eight telephones active out of a total of fifteen available telephones. Sometime in late June, around June 26, 1992, a URF representative was in the office of the Dade County occupational license department. Mary Helen Shelton, a Consumer Services Consultant, Florida Department of Agriculture and Consumer Affairs, Division of Consumer Services, in Tallahassee received a telephone inquiry about URF from the local department. After checking the agency's computer file, Ms. Shelton informed the local staff person that URF was not registered. The URF representative then was put on the telephone and Ms. Shelton said she would send an application package. Within a few days, the package was sent. By the end of June, the agency was aware that URF was soliciting contributions. On June 29, 1992, Gregory Fox, television anchor and reporter with WESH in Orlando, called Tallahassee and spoke with Karen MacFarland, Director of the Division of Consumer Services. He told her that URF had been working in Orlando and elsewhere in the state and he asked whether the organization was registered. She told him that it was not. She learned from Ms. Shelton that an application packet had recently been sent. The application form was filled out by URF and was received back at the agency on July 10, 1992. Dan Whittaker immediately began calling to check on its status. Clyde Chandler, a staff person in the agency's registration program office had spoken with Dan Whittaker and URF's accountant early in July in response to their inquiries related to registration of a solicitor. When he got the July 10th call, he retrieved the application from the mailroom and informed Whittaker that it had arrived, but there was a backlog of mail and he could not look at it yet. On July 15th Dan Whittaker called again on the application status. Clyde Chandler told him the agency had information that URF had solicited before and they needed more information on their "financials", as the budget furnished with the application was incorrect. Chandler also asked Whittaker to furnish IRS tax exempt status information. Clyde Chandler did not put his request in writing, but the next day, July 16, Dan Whittaker appeared in person with URF's accountant in Mary Helen Shelton's office. She looked at the letter they gave her and she said it "looked OK" to her, but that Clyde was working on the file. They waited for Clyde Chandler to return from lunch and gave him the letter. He looked at it, but did not review it and said that the agency had ten days to process the papers. On July 17, Dan Whittaker called Clyde Chandler. Although the two witnesses disagree on the exact conversation, it is clear that Chandler conveyed that the information provided was complete and in compliance. Chandler admits that the information provided to him on the 16th satisfied him. Chandler gave Whittaker the agency file number for URF. Chandler said the papers were on Ms. Shelton's desk and would go out shortly. URF immediately began soliciting again, and gave out the agency file number as evidence of its registration. On July 30, 1992, a letter was sent by fax to URF's accountant, signed by Karen MacFarland, denying URF's registration, stating this reason: The Division of Consumer Services has evidence that United Rainbow Foundation/Children's Cancer Society has solicited contributions in violation of s. 496.405(1)(c) on several occasions. (Petitioner's exhibit #12) The agency also issued an administrative complaint seeking fines. Between January 1, 1992, when Section 496.405, F.S. took effect with the implementation responsibility in the Department of Agriculture and Consumer Services, and July 31, 1992, the agency has received 1843 applications for registration. Of such applications, 1581 have been found in compliance, 255 are pending, 5 were withdrawn, and 2 (including URF) were denied. To the knowledge of the agency staff who testified, no application for registration has been approved for an organization which conducted solicitations in violation of the law. The agency concedes that the application received on July 10, 1992 includes all of the information required by Section 496.405, F.S., with the exception of appropriate financial information. A one page budget for the year ending December 31, 1992 was attached to the completed form when it was received on July 10. The budget reflects gifts, grants and contributions totalling $1,125,000, and expenses totalling $828,896. From this, and from the evidence presented at hearing, it is impossible to determine how Mr. Chandler determined the budget was inaccurate. As of July 15, 1992, the agency already had notice of URF's pre- registration activities. It also had this admission from Dan Whittaker, included in the hand-delivered July 15th letter, that it knew of its legal responsibility at the time that it was soliciting: During the initial conference with our present accountant on May 28, 1992, he asked if we had met all Federal, state and local requirements re the solicitation of contributions. Since we thought, but were not certain whether all such requirements had been met, the accountant advised that we immediately cease soliciting contributions. Based on his advice, we stopped. On June 11, 1992, our accountant notified us that: IRS had not received Form 1023, Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code, allegedly submitted on May 5, 1992; and State and local requirements under the Solicitation of Contributions Act effective January 1, 1992 had not been satisfied. (Respondent's Exhibit #6, emphasis added) At no time prior to July 30 was URF informed, orally or in writing, that its registration would be denied. Nor was it told that any problem existed other than the additional "financials" sought by Clyde Chandler, which "financials", according to Chandler, were in order as of July 17. Chandler has the authority to approve registrations and has done so in other cases.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Division of Consumer Services enter its final order approving the registration of United Rainbow Foundation, Inc., by default, and without prejudice to the agency's right to pursue other administrative penalties pursuant to its authority in Section 496.419(4), F.S. DONE AND RECOMMENDED this 17th day of August, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1992. APPENDIX The following are specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in finding of fact, paragraph 1. Addressed in conclusion of law, paragraph 1. Adopted in part in paragraph 9. Respondent did initiate enforcement action with its complaint dated July 30. Adopted in paragraph 10. Adopted in paragraphs 11 and 19. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 15. Adopted in part in paragraphs 4 and 5, otherwise rejected as unnecessary. Rejected as irrelevant. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph 1. Adopted in paragraph 6. Adopted in substance in paragraphs 7 and 9, otherwise not relevant. Adopted in paragraph 10. Adopted in substance in paragraph 14, otherwise not relevant. Adopted in paragraph 11, as to needing additional information. The exact substance of the conversation was not proven. Adopted in paragraph 12. Adopted in paragraph 15. Adopted in part, as to the solicitations prior to July. Rejected as contrary to the facts and law as to any solicitations between July 18 and 30. The statement was orally approved on July 17 and was approved by default on July 24. COPIES FURNISHED: John P. Holsonback, Esquire 408 East Madison Tampa, Florida 33602 Robert G. Worley, Esquire Dept. of Agriculture and Consumer Services Mayo Bldg., Room 515 Tallahassee, Florida 32399-0800 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Dept. of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Section 120.57(1)(b)4. provides the right for parties to file exceptions to a recommended order. The 2-day deadline for final order in Section 496.405(7), may effectively negate that right. =================================================================
The Issue The issue in this case is whether the Florida Department of Transportation (Respondent) committed an act of unlawful employment discrimination against Stephen G. Leslie (Petitioner) in violation of the Florida Civil Rights Act (FCRA) of 1992.
Findings Of Fact In 1986, the Petitioner began his employment with the Respondent as a "Safety Specialist." Beginning in 2001, and at all times material to this case, the Petitioner was employed by the Respondent as an "Outdoor Advertising Regional Inspector." As an outdoor advertising regional inspector, the Petitioner's responsibilities included patrolling state roads in his assigned counties to ascertain the status of permitted outdoor advertising signs and to remove signs that were illegally placed on state right-of-way. The Respondent's duties required extensive driving, which he did in a state-supplied vehicle. The Petitioner was based at the Respondent's Tampa headquarters, but was supervised by employees located in Tallahassee. In 2007, the Petitioner began to experience neurological health issues, but he continued to work and was able to perform the responsibilities of his employment. From September 2008 to June 2011, the Petitioner was supervised by Robert Jessee. In 2009, the Petitioner's health issues got worse. He began to take more sick leave, which the Respondent approved upon request of the Petitioner. The Respondent also provided equipment to accommodate the Petitioner's health issues, including a laptop computer and larger mirrors on the Petitioner's state vehicle. The Respondent also assigned another employee to ride with the Petitioner and to remove signs illegally placed on state right-of-way so that the Petitioner did not have to exit the vehicle. In 2010, the Petitioner was involved in two automobile accidents while driving the state vehicle. In January, he ran into a vehicle that was stopped for a school bus. In February, while transporting a group of other employees on I-75, the Respondent struck rode debris and the vehicle was damaged. In April 2010, the Petitioner's presence in the Tampa headquarters building was restricted for reasons that were unclear. Although the restrictions caused embarrassment to the Petitioner, there was no evidence presented at the hearing to suggest that such measures were related in any way to the Petitioner's disability. Following an investigation of the traffic incidents by the Respondent's inspector general, the Petitioner received a written reprimand dated August 18, 2010, and was directed to take the Respondent's online driving course. Beginning in June 2011 and through the remainder of the Petitioner's employment by the Respondent, the Petitioner was supervised by Michael Green. The Respondent collects statistical data to measure the productivity of persons employed as outdoor advertising regional inspectors. The Petitioner's productivity statistics were significantly lower than those of other inspectors, and he was behind in his assignments. Accordingly, Mr. Green rode along with the Petitioner for three consecutive days in September 2011 to observe the Petitioner's work. At the hearing, Mr. Green testified that the Petitioner arrived late to pick him up at his hotel on all three days. On one of those days, the Petitioner accomplished an employment- related task prior to picking up the supervisor. Mr. Green testified that the Petitioner's driving made him feel unsafe during the observation. Mr. Green observed that the Petitioner accelerated and slowed the vehicle in an abrupt manner, and that he failed to use turn signals at appropriate times. Mr. Green also testified that the Petitioner was preoccupied as he drove by electronic devices, including a cell phone. Mr. Green testified that the Petitioner appeared to have difficulty entering and exiting the vehicle, and with hearing certain noises in the vehicle, including the click of the turn signal. Mr. Green testified that he felt so unsafe that he asked the Petitioner to alter his driving practices while Mr. Green was in the vehicle. Mr. Green testified that during the observation ride, the Petitioner discussed his physical condition and admitted that medical appointments during the week made it difficult to maintain the routine work schedule. The Petitioner also advised Mr. Green that he was considering filing for disability retirement. After returning to the Tallahassee headquarters, Mr. Green prepared a memorandum dated September 19, 2011, to memorialize his observations about the Petitioner's job performance. Mr. Green's memorandum was directed to Juanice Hughes (deputy director of the Respondent's right-of-way office) and to the Respondent's outdoor advertising manager. In the memo, Mr. Green recommended that the Petitioner be required to provide medical verification of his continued ability to perform the responsibilities of his position. In a letter to the Petitioner dated September 23, 2011, Ms. Hughes restated Mr. Green's observations and directed the Petitioner to obtain medical verification that the Petitioner was able to perform the responsibilities of his position safely. The letter specifically directed the Petitioner to provide medical information related to his ability to work his normal schedule, the existence of any work restrictions or required accommodations, and the impact of any medications prescribed for the Petitioner. The letter established a deadline of September 30, 2011, for the Petitioner's compliance with its requirements, and advised that he would not be permitted to resume his employment duties until the medical verification information was provided and any required accommodations were in place. The Petitioner apparently did not become aware of the letter until September 29, 2011. On that date, both Mr. Green and Ms. Hughes attempted to contact the Petitioner via his work cell phone and by email to advise him of the letter and to direct that he retrieve the letter from the district headquarters. Shortly after 4:00 p.m., contact was made with the Petitioner by calling his personal cell phone. At that time, the Petitioner was advised that he needed to return to the district headquarters to pick up the letter. He was further advised that he was being placed on leave until the requirements of the letter were met and that he needed to turn in his state vehicle when he arrived at the headquarters. The Petitioner advised Mr. Green and Ms. Hughes that he was attempting to obtain documentation required to file for disability retirement, and he asked for an extension of time during which to do so. His request for an extension was denied. The Petitioner, clearly unhappy with the circumstance, made a statement during the conversation that was considered by Mr. Green and Ms. Hughes to suggest that the Petitioner could cause damage to himself or to the state vehicle. The actual words spoken were disputed at the hearing, and the evidence fails to establish that the Petitioner would have actually damaged the vehicle or himself. Nonetheless, it was clear after the conversation that the Petitioner was resistant to the Department's instructions. The Respondent immediately directed James Moulton, the director of Transportation Operations for the Tampa district, to check on the Petitioner's condition and to retrieve the vehicle assigned to the Petitioner. Mr. Moulton did so, accompanied by local law enforcement personnel, at approximately 7:00 p.m. on September 29, 2011. In a letter to the Petitioner dated September 30, 2011, Ms. Hughes recounted the events of the day before and again directed the Petitioner to obtain medical verification that he was able to perform the responsibilities of his position safely. No deadline was set for the Petitioner's compliance, and he was advised that he could use leave for any absence related to obtaining the medical documentation. A few days later, the Petitioner advised the Respondent that he would be unable to obtain the requested medical verification and that he would be filing an application for medical disability retirement. In November 2011, the Petitioner filed the application accompanied by medical documentation establishing that the Petitioner had a "total and permanent disability," as defined by section 121.091(4)(b), Florida Statutes (2011).1/ His application was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by the Petitioner against the Respondent in this case. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2013.
The Issue Whether disciplinary action should be taken against Respondent’s licenses to practice contracting, license numbers CGC057941, CGC1509240 and QB37866, based on alleged violations of Section 489.1425, and Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(g)3., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes (2007),1 as charged in the Administrative Complaint filed against Respondent in this proceeding.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found. Respondent is and has been, at all times material hereto, a certified general contractor in the State of Florida, having been issued license numbers CGC057941 and CGC1509240. At all times material hereto, Respondent was the primary qualifying agent for ProTeam and Associates, Inc. (ProTeam), which has a certificate of authority, QB number 37866. Respondent alleged in his request for a formal hearing that he sold ProTeam on August 11, 2005, and removed his name as qualifying agent on the same date. However, no proof of such sale and withdrawal was offered in evidence. In addition, Respondent claimed to have placed his two contractors’ licenses on inactive status in April 2007. The records of Petitioner show that the licensure status of Respondent’s Certified General Contractor license numbers CGC057941 and CGC1504240 is “Delinquent Inactive.” These licenses expired on September 30, 2008, and became delinquent on October 1, 2008, upon failure to renew by the date of expiration. Facts Pertaining to Counts I – IV Petitioner’s Case No. 2007-022091 On or about November 8, 2006, Van Winkle entered into a contract with ProTeam to repair water damage to Van Winkle’s residence located at 3620 Ironwood Circle, Building O, Unit 402, Bradenton, Florida. The contracted price for the construction, including change orders, was $18,358.50, of which amount ProTeam accepted approximately $15,604.71. The contract did not contain a statement explaining the consumer’s rights under the Florida Homeowners’ Construction Recovery Fund. Construction commenced on or about November 15, 2006, and continued until ProTeam abandoned the project. At the time ProTeam abandoned the project, the percentage of completion was less than the percentage of the total contract price paid by Van Winkle. Van Winkle had paid monies in the amount of $15,604.71, an amount sufficient to cover the first three draws of the contract, which should have included all aspects of the project except for the cabinet installation and punchlist. Respondent received draws to complete the painting and to order and deliver cabinets and vanities, but failed to do so. Respondent accepted 85 percent of the contract price for Van Winkle’s restoration project and provided only demolition and preparation work, carpet and an unfinished paint job. There is no evidence in the record to suggest that Respondent provided Van Winkle with any refund within 30 days after the job was abandoned, and, given that the paint was unfinished and the vanities and cabinets were not provided there is no evidence that Respondent was entitled to keep the amount of funds received under the terms of the contract. The excess amounted to $6,425.47 On or about January 25, 2007, a lien was filed against Van Winkle’s property by Carpet Corner, Inc. for unpaid services in the amount of $1,745.09. The valid lien was recorded against Van Winkle’s property for carpeting ordered by Respondent for Van Winkle’s job. Respondent received funds from Van Winkle to pay for the carpet, but Respondent failed to apply those funds towards full payment of the carpet subcontractor. The lien was filed on January 29, 2007, and was not released until Van Winkle paid $1,745.09 to the carpet subcontractor on August 23, 2007, a period greater than 75 days. Van Winkle’s testimony seems, at times, to confuse the amount of the lien and the amount paid to release it with the amount paid by Respondent to the carpet subcontractor. However, her testimony also indicates that Respondent only paid $1,000.00 to the carpet subcontractor out of a $2,745.09 total contract. It is clear that the amount of the lien, and the amount paid by Van Winkle to release the lien, was $1,745.09, as indicated in the records of the Manatee County Clerk of Circuit Court. The total investigative costs to Petitioner, excluding costs associated with an attorney’s time, for Petitioner’s case number 2007-022091, was $253.42. Facts Pertaining to Counts VI – IX Petitioner’s Case No. 2007-039332 On or about August 29, 2006, Berry entered into a contract with ProTeam to repair water damage to Berry’s residence located at 4152 Whittner Drive, Land O’Lakes, Florida. The contracted price for the construction, including change orders, was $17,921.33. ProTeam accepted approximately $18,908.74 from Berry for the project. The contract did not contain a statement explaining the consumer’s rights under the Florida Homeowners’ Construction Recovery Fund. No permit was obtained for the project. However, the job was completed. A permit was required for Berry’s project due to the fact that the contract called for the replacement of a shower pan and removal of a structural element. A thorough search of Pasco County records indicated that Respondent did not obtain a permit for this project. The new stucco did not match the old stucco and needed to be redone, and Berry had to pay an additional $988.40 to have the stucco repaired and repainted. The total investigative costs to Petitioner, excluding costs associated with an attorney’s time, for Petitioner’s case number 2007-039332, was $285.51.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that an order be rendered as follows: Finding Respondent guilty of having violated Section 489.1425, Florida Statutes, Count One of the Administrative Complaint, and imposing as a penalty an administrative fine of $2,000.00. Finding Respondent guilty of having violated Subsection 489.129(1)(g)1., Florida Statutes, Count Two of the Administrative Complaint; imposing as a penalty an administrative fine of $2,500.00 and restitution in the amount of $1,745.09;2 and placing Respondent’s licenses (License Nos. CGC057941, GCG1509240, and QB37866) on probation for a period of four years. Finding Respondent guilty of having violated Subsections 489.129(1)(g)2. and (1)(o), Florida Statutes, Count Three of the Administrative Complaint, and imposing as a penalty an administrative fine of $2,500.00 and restitution in the amount of $6,425.47.3 Finding Respondent guilty of having violated Subsection 489.129(1)(j), Florida Statutes, Count Four of the Administrative Complaint, and imposing as a penalty an administrative fine of $5,000.00 Finding Respondent guilty of having violated Subsection 489.129(1)(m), Florida Statutes, Count Five of the Administrative Complaint, and imposing as a penalty an administrative fine of $2,500.00. Finding Respondent guilty of having violated Section 489.1425, Florida Statutes, Count Six of the Administrative Complaint, and imposing as a penalty an administrative fine of $500.00. Finding Respondent guilty of having violated Subsection 489.129(1)(g)3., Florida Statutes, Count Seven of the Administrative Complaint, and imposing as a penalty an administrative fine of $5,000.00 and restitution in the amount of $1,975.81.4 Requiring Respondent to pay Petitioner’s costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $511.93. DONE AND ENTERED this 6th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2009.
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's contractor's license based upon the alleged violations of Sections 489.129(1)(h) and (m), Florida Statutes, set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent was licensed by the Construction Industry Licensing Board (the "Board") as a certified general contractor having been issued License No. CG C024612. Respondent has been a licensed contractor since 1983. On May 3, 1991, the Board filed a Final Order in Board Case Nos. 89-009986 and 89-013330 imposing a reprimand against Respondent. The Final Order was issued as part of the settlement of an amended administrative complaint filed against Respondent by Petitioner regarding certain unrelated transactions. Respondent was the qualifying agent for Willie William Construction Company, Inc. until October 1985. At that time, as a result of a corporate name change, Respondent became the qualified agent for Ashar Construction Company. On February 21, 1985, the Unsafe Structures Board of the Building and Zoning Department for Dade County advised Ruby Delancy that a hearing would be conducted on March 12, 1985 to determine whether a one story framed residence that Mrs. Delancy owned at 1005 NW 58th Street in Miami (the "House" or the "Property") should be demolished. The Notice indicated that the structure was "open, vacant, vandalized, filled with combustible materials; posing a serious fire hazard. Structure is a danger to human life and public welfare." The Notice estimated the present value of the building at $16,080 and the estimated cost of repairs at $51,120. The County's records indicate that a Notice of Violation regarding the Property had been issued to the owner on October 31, 1984. Facing imminent demolition of the House, Mrs. Delancy began to investigate possible ways to get the House repaired. She filed an application with the City of Miami for a low income, low interest loan that was funded through Federal HUD Community Development Funds. Her efforts to obtain funding to repair the House, delayed the proceedings that had been initiated to demolish the structure. In September of 1985, the City approved Mrs. Delancy for a grant of $10,000 and loan of $20,000 to repair the House. Mrs. Delancy has no other funds to pay for repairs to the Property other than the $30,000 she was obtaining through the City Program. Under the City's program, Mrs. Delancy was responsible for selecting a contractor. Mrs. Delancy contacted Respondent, who inspected the Property and prepared a construction estimate which was submitted to the City. Respondent entered into a contract (the "Contract") dated September 20, 1985 with Mrs. Delancy for home improvement work on the House. The total contract price was $29,870, which was to be paid in two installments: $10,835 on or before December 31, 1985 and a final payment of $19,035 on or before March 3, 1986. The evidence established that Respondent was initially reluctant to enter into the Contract and at least two other contractors refused to undertake the work given the limited funds available. However, Respondent agreed to take the job because of Mrs. Delancy's insistence and because of Respondent's sympathy for Mrs. Delancy's desperate situation in view of the imminent demolition of the House. The evidence also established that Mrs. Delancy requested Respondent to undertake additional work and/or services that were beyond the scope of the Contract. Among the extra items undertaken by Respondent was replacement of the floor in the family room. Additional expenses were also incurred because of unanticipated problems encountered during the renovation. For example one side of the house gave way during the renovation work. Upon investigation, it was discovered that there was no footing. Respondent was required to shore up that side of the House. In addition, the electrician was unable to get a meter because there was an outstanding electric bill for the Property. Respondent paid the old bill in order to get the meter connected. Similarly, she paid the gas company to get the stove hooked up. It does not appear Respondent received any additional compensation for the extra work. Except for $345 that Respondent paid for utilities on behalf of Mrs. Delancy, the evidence at the hearing was insufficient to place a dollar value on these extra services and expenses. The first installment under the Contract of $10,835 was paid to Respondent on or about December 31, 1985. In approximately January of 1986, Mrs. Delancy's son, Gerald Delancy, who had been living out of the state, returned to Miami and became involved in overseeing the construction on behalf of his mother. Gerald Delancy was not pleased with the quality of the construction and a great deal of tension developed between Gerald Delancy and Respondent. The final payment request form was submitted on February 20, 1986. Mrs. Delancy signed a document (the "Certificate of Completeness") indicating that the work was completed and the final payment was made to Respondent by the City on March 3, 1986. Gerald Delancy was present when his mother signed the Certificate of Completeness. She signed this Certificate against the advice of her son. At the time the document was signed, Respondent agreed in principal to complete any remaining work. The City Inspection Form which was posted on the project fails to indicate that a final inspection approval was obtained from the City. In addition, the evidence established that required roof inspections were not obtained prior to the final structural inspection. Gerald Delancy prepared a punch list of items which he felt were incomplete and submitted it to Respondent. It does not appear that this list was prepared until July of 1986. Because of the dispute between Respondent and Gerald Delancy as to what was required under the Contract, a copy of the punch list was also sent to the City. The punch list prepared by Gerald Delancy included a number of items which were beyond the scope of the Contract. For example, with respect to the plumbing, the complaints included the following: the water pressure was to low on the water line, the kitchen sink was too small, and the bathroom vanity was substandard. The Contract did not provide for a bathroom vanity. There were also complaints about ants and roaches and "missing shower rods and towel racks" even though these items were not specifically included within the Contract between Respondent and Mrs. Delancy. The City sent its estimator to the House to review the punch list items. The City's estimator felt that Respondent should provide another coat of paint and should complete some other minor repair work, but the estimator did not concur in many of Gerald Delancy's complaints. The City's rehabilitation estimator met with Respondent and Gerald Delancy at the House on July 15, 1986. At that meeting, Respondent agreed to correct certain matters and asked for one month to complete the work. On August 1, 1986, the work was not completed and Respondent requested an additional 30 days. On August 13, 1986, Respondent stated that she did not have the money to complete the work. According to the City's estimator, the cost to repair the construction deficiencies he noted would be approximately $2,500 to $3,000 as of the date of the hearing. During this period in August, Respondent did send some workers back to the house to complete some additional work. A dispute arose between those workers and Gerald Delancy. The exact nature and reasons for this dispute are not clear. Ultimately, Gerald Delancy refused to allow the workers to perform any work because he did not feel he received adequate answers to his inquiries as to the nature of the work they intended to perform. After the City refused to concur in all of his complaints, Gerald Delancy hired a building inspection company. He paid that company $534 and it rendered a report dated August 4, 1986 which detailed many other deficiencies in the construction. It is not clear whether this report was ever presented to Respondent. On or about November 3, 1986, Mrs. Delancy, at the urging of her son, filed a lawsuit against Respondent. On or about August 8, 1989, Mrs. Delancy obtained a final default judgement against Respondent in the amount of $65,000 plus costs of $102.50. Respondent claims that she was unaware of the lawsuit and the default final judgement until Petitioner's investigator questioned her about it on September 25, 1990. As of the date of the hearing in this case, Respondent has not appealed the judgement nor has she attempted to have it set aside or vacated. In addition to alleged construction defects, the default judgement included claims against Respondent for allegedly mishandling certain household goods and other property owned by Mrs. Delancy. The evidence presented in this case was confusing and inconclusive as to the nature and justification for these claims by the Delancys for property which Respondent was allegedly storing for Mrs. Delancy. Apparently, Respondent agreed to assist Mrs. Delancy by moving some of the furniture out of the house and placing it in storage during construction. The contract did not require Respondent to provide any moving or storage services and there is no evidence that Respondent was paid for this work. Some or all of the property that was moved out of the house was lost, stolen or destroyed. There is a dispute between the parties as to circumstances surrounding the loss of this property. The evidence presented in this case was insufficient to establish what happened to the property, who was responsible for it and/or how much it was worth. It does appear that the default judgement against Respondent includes a very high assessment for the property involved. However, as noted above, that judgement has not been vacated or appealed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count I of the Administrative Complaint, finding the Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing the following disciplinary action against the Respondent: Imposition of an administrative fine of $1,000. Suspension of the Respondent's license for a period of one year, followed by two years probation under such terms as may be imposed by the Board. DONE and ENTERED this 22nd day of August, 1994, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6438 Only Petitioner submitted a proposed recommended order. The following rulings are made with respect to the proposed findings of fact submitted by Petitioner. The Petitioner's Proposed Findings of Fact Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 4, 11, and 12. Adopted in substance in Findings of Fact 3 through 9. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 14 through 18. Subordinate to Findings of Fact 18. Subordinate to Findings of Fact 16 through 18. Subordinate to Findings of Fact 17. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 20. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 20. Rejected as unnecessary. Adopted in substance in Findings of Fact 21 and 22. Subordinate to Findings of Fact 21. Subordinate to Findings of Fact 22. Subordinate to Findings of Fact 21 and 22. Subordinate to Findings of Fact 21 and 22. Adopted in substance in Findings of Fact 1. COPIES FURNISHED: Theodore R. Gay, Esquire Dept. of Bus. and Prof. Reg. 401 NW 2nd Ave., Ste N-607 Miami, FL 33128 Agnes Sangster 9925 NW 25th Ave. Miami, FL 33147 Jack McRay Acting General Counsel Dept. of Bus. and Prof. Reg. 1940 N. Monroe St. Tallahassee, FL 32399-0792 Richard Hickok, Exec. Dir. Construction Industry Licensing 7960 Arlington Expressway, Ste 300 Jacksonville, FL 32211-7467
Findings Of Fact The Respondent is a registered general contractor, having been issued license number RG 0012013. On October 3, 1980, the Respondent, d/b/a Five Ray Enterprises, Inc., entered into a contract with David and Laytha Danley to construct a residence near Brooksville, Florida, for the sum of $61,621.00. This contract was a construction management type of agreement in which the Respondent was to be paid a fee for his services. The Respondent commenced construction, and completed between 85 percent and 95 percent of the project before discontinuing an active role in the work during June of 1981. The Respondent's base of operations was in Winter Park, nearly 100 miles from the construction site, and he was having some personal problems. Therefore, the Respondent agreed with Al Nickola to have Nickola supervise the completion of construction, which involved some painting, grading, finish electrical work and the installation of appliances. The Respondent knew that Al Nickola was unlicensed as a contractor when he entered into the agreement with Nickola to complete the construction. Before he discontinued his work on the project, the Respondent received all the inspections except for the Certificate of Occupancy. His agreement with Nickola was to complete the work which was left and to obtain the Certificate of Occupancy. The Respondent did not properly qualify Five Ray Enterprises, Inc., under which name he contracted to build the residence for the Danleys. On September 9, 1981, the Citrus County Hoard of Examiners revoked the Respondent's license for abandonment of the Danley construction project. However, the minutes of the Board meeting at which this action took place, do not reflect whether or not a full examination was made of all the facts. They simply indicate that the Respondent did not appear at the meeting as requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Roland C. Ray, be found guilty of one violation of Section 489.129(1)(g), Florida Statutes, and one violation of Section 489.119(2) and (3), Florida Statutes, and that he be assessed an administrative fine of $250 on each charge for a total fine of $500. It is further RECOMMENDED that the Respondent be found guilty of violating Section 489.129(1)(i), Florida Statutes, and that his license be suspended until such time as the Respondent has obtained reinstatement of his Citrus County license. And it is further RECOMMENDED that the Respondent be found not guilty of violating Section 489.129(1)(k), Florida Statutes. THIS RECOMMENDED ORDER entered on this 11th day of February, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Roland C. Ray 305 North Pennsylvania Avenue Winter Park, Florida 32789 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DPR Case No. 0018288 DOAH Case No. 82-2395 ROLAND C. RAY RG 0012013 Post Office Box 5877 Orlando, Florida 32855 Respondent. /
The Issue The issues in this case are whether Respondent violated Section 550.2415(1)(a), Florida Statutes (1996)1 by allowing a greyhound with a drug, medication, stimulant, depressant, hypnotic, narcotic, or local anesthetic, in its system to enter and complete a race and, if so, what, if any, disciplinary action should be taken against Respondent's pari-mutuel wagering occupational and business licenses.
Findings Of Fact Petitioner is the state agency responsible for regulating the pari-mutuel industry in the state, including the regulation and discipline of licensees such as Respondent. Respondent holds an Unrestricted "U1 " Professional individual pari-mutuel wagering occupational license, number 0526562-1081, and a business occupational pari-mutuel wagering license, number 1364008-1080, for Ron Runge Kennel. Respondent is the trainer of record for Prunella Scales ("Prunella"), a greyhound. On February 22, 1997, the Respondent entered Prunella in the thirteenth race at Sanford-Orlando Kennel Club (the "race") and allowed Prunella to complete the race. Prior to the start of the race, urine sample number 267912 was taken from Prunella. The urine analysis conducted by the Bureau of Laboratory Services revealed the presence of ecgonine methyl ester in sample number 267912. Ecgonine methyl ester is a metabolite of cocaine. Cocaine is a topical anesthetic and a class 1 drug. Respondent violated Section 550.2415(1)(a) by entering Prunella in the race with an impermissible drug in its system and allowing Prunella to complete the race in such a condition. As the trainer of record, Respondent is responsible for of the condition of a greyhound that he or she enters in a race. Respondent has an extensive disciplinary history. In August 1994, Petitioner fined Respondent $25.00 for racing a greyhound on an impermissible drug and redistributed the purse money. In September 1994, Petitioner fined Respondent a total of $50.00 for racing two greyhounds on an impermissible drug. In one instance, Petitioner redistributed the purse money. In November 1994, Petitioner fined Respondent $25.00 for racing a greyhound on an impermissible drug. Respondent's pari-mutuel occupational license was suspended until he paid the fine. In September 1995, Petitioner fined Respondent a total of $50.00 for racing two greyhounds on an impermissible drug. In one instance, the purse money was redistributed. In January 1996, Petitioner fined Respondent $100.00 for racing a greyhound on an impermissible drug and suspended Respondent's pari-mutuel occupational license until Respondent paid the fine. In March 1996, Petitioner fined Respondent $50.00 for racing a greyhound on procaine, an impermissible substance. In March 1997, Petitioner summarily suspended Respondent's licenses and denied Respondent all access to pari-mutuel grounds during the period of suspension. In addition to the foregoing drug violations, Respondent was found guilty of improperly using rabbits in the training of racing greyhounds in November 1991. He was fined $250.00 for that violation. On March 11, 1995, Respondent was fined $50.00 for presenting the wrong greyhound at the weigh-in, and on July 30, 1996, he was fined $50.00 for failure to present the proper greyhound at the weigh-in. Prior disciplinary action has been ineffective in rehabilitating Respondent. Respondent persists in the prohibited practice of racing animals on impermissible substances. License suspension and fines have no deterrent effect on Respondent. Respondent is not a viable candidate for rehabilitation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order and therein find Respondent guilty of violating Section 550.2415(1)(a) by racing an animal with an impermissible drug in its system and revoke Respondent's licenses. DONE AND ENTERED this 9th day of January, 1998, in Tallahassee, Leon County, Florida. Hearings Hearings DANIEL MANRY Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 9th day of January, 1998.
Conclusions UPON CONSIDERATION of the Administrative Complaint attached hereto as Exhibit “A”, the transcript of the corresponding Division of Administrative Hearings (DOAH) case, the exhibits received into evidence, ‘the Proposed Recommended Order filed by the Administrative Law Judge in this matter and attached hereto as Exhibit “B’, any exceptions to the Recommended Order filed by either party, and being otherwise fully advised of the premises, it is hereby, ORDERED AND ADJUDGED: 1. The Findings of Fact, Conclusions of Law, and recommended penalty as _ detailed in the Recommended Order are hereby adopted. 2. Respondent is not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. . 3. This Final Order shall become effective on the date of filing with the Agency Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this ogee, of (Octien. 2008. W. Drago, Secretary Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, FL 32399-0750
Appeal For This Case Unless expressly waived, any party adversely affected by this Final Order may seek judicial review by filing an original Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, and a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal within 30 days of the effective date of this order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section 120.68, Florida Statutes. CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the foregoing Final Order has been provided via U.S. Mail to Respondent, Todd Boetzel and Boetzel Landscaping, Inc., c/o Gregory T. Elliott, Esquire, Elliott-Berger, P.A., 7310 Gulf Boulevard, St. Petersburg, Florida 33706, wie ny of CC 2008. SARAH WACHMAN, AGENCY CLERK By: Mush Ah Min Brandy Nichols, Deputy Clerk Copies furnished to: Reginald D. Dixon, Informal Hearing Officer Sorin Ardelean, Assistant General Counsel Division of Regulation, Bureau of Unlicensed Activity Daniel Manry, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060 Steven Petrozak, d/b/a Southern Cross Construction, 6435 92" Place #901, Pinellas Park, Florida 33782
